Bon v. Ziga : AC 5436 : May 27, 2004 : J. Tinga : Second Division :
[A.C. NO. 5436 : May 27, 2004]
ALFREDO BON, Complainant, v. ATTYS. VICTOR S. ZIGA and ANTONIO A. ARCANGEL, Respondents.
D E C I S I O N
On May 9, 2001,
Alfredo Bon (complainant) filed a Complaint1 dated April 3, 2001for
disbarment against the respondents, Attys. Victor S. Ziga (Ziga) and Antonio A.
Arcangel (Arcangel). Allegedly, the respondents, conspiring with each other and
with the use of fraud, intimidation, stealth, deception and monetary
consideration, caused Amalia Bon-Padre Borjal, Teresa Bon-Padre Patenio,
Felecito Bon and Angelina Bon (collectively, the Bons) to sign a document
entitled Waiver and Quitclaim.According
to the complainant, the Bons signed the Waiver and Quitclaim because of
Zigas representation that the document was merely a withdrawal of a previously
executed Special Power of Attorney.As
it turned out, the document was a waiver in favor of Ziga of all the properties
which the Bons inherited from their parents and predecessors-in-interest. Attached to the Complaint are Affidavits2 executed by the Bons renouncing the Waiver and Quitclaim.
Moreover, the complainant claims that the Bons are residents of Manila
and did not appear before Arcangel who was then in Albay to acknowledge the Waiver
and Quitclaim.Despite this fact,
Arcangel notarized the documentand even made it appear that the Bons
personally appeared before him to acknowledge the same.
On November 20, 2001,
the respondents filed their Joint Comment3 dated October 6, 2001.According to them, the allegations in the Complaint
that the Bons did not understand the contents of the Waiver and
Quitclaim and that they did not personally appear to acknowledge the same
before Arcangel indicate that the cause of action is based on alleged intrinsic
defects in the document.As such, only
the parties to the document, i.e., the Bons, whose rights were violated
can file the Complaint.Being a
stranger to the allegedly defective document, the complainant cannot file the Complaint.Besides, Maria Bon Borjal and Rafael
Bon-Canafe who are co-signatories to the Waiver and Quitclaim both
declared in their Joint Affidavit4 that Ziga thoroughly explained the contents of the Waiver and Quitclaim to
the Bons before they signed the document.The subscribing witnesses, Rogelio Bon-Borjal and Nida Barrameda, also
declared in their Joint Affidavit5 that the
contents of the document were explained to the signatories.
The respondents also aver that it is difficult to believe that
the Bons did not understand the contents of the document they were signing
since Amalia and Angelina Bon are both high school graduates, while Teresa Bon
is a college graduate.6 Further, the fact that the Bons admit having accepted
Ziga to sign the Waiver and Quitclaim precludes them from questioning
For Arcangels part, he explains that assuming that he notarized
the Waiver and Quitclaim in the absence of the signatories, his act is
merely a violation of the Notarial Law but not a ground for disbarment.He further avers that he was able to talk to
Maria Bon and Rafael Bon-Canafe, both co-signatories to the document, over the
phone.Maria Bon and Rafael Bon-Canafe
allegedly declared that they signed the Waiver and Quitclaim.The two, in fact, personally delivered
the document for notarization in his office.Thus, he posits that there was substantial compliance with the Notarial
Law since a notary publics primordial undertaking is merely to ensure that the
signatures on a document are genuine.As
long as they are so, the notary public can allegedly take the risk of
notarizing the document although the signatories are not present.
In conclusion, the respondents aver that the complainant must
first prove that the Waiver and Quitclaim is defective before he can
file an administrative case against them.
The complainant filed a Reply, Opposition and Comment to Joint
Comment of Respondents7 dated April 5, 2001
asserting that he has a right to complain over the acquisition of the
properties subject of the Waiver and Quitclaim having been mentioned
therein.He also avers that he has the
right to inform the Court of the deception committed by the respondents.He further states that the Bons signed the
document after having been deceived and intimidated by Ziga who, he claims,
exercises moral ascendancy over the Bons.That the Bons are educated does not necessarily mean they could not have
been intimidated and deceived.He
maintains that the Bons were misled into believing that what they were signing
was a withdrawal of a previously issued Special Power of Attorney and were
P5,000.00 each to induce them to sign the Waiver and Quitclaim.
Even assuming that the signatures appearing on the Waiver and
Quitclaim are genuine, he asserts that it was still highly irregular for
Arcangel to notarize the document by telephone when it could have been
notarized in Manila where the
signatories reside.Lastly, he avers
that it is not necessary for a court to declare that the Waiver and
Quitclaim is defective before the instant administrative case can proceed.
The respondents filed their Comment on Complainants Reply8 dated April 12, 2002
alleging that in his reply, the complainant changed his cause of action from
fraud and deception to intimidation and moral ascendancy.According to them, the complainant is
incompetent to charge Ziga with intimidation as he was not a party to the
document and was not even present when it was executed.The respondents insist that the only instance
when anyone can file a disbarment complaint against a lawyer is when the ground
therefore is a public offense like immorality, misbehavior, betrayal of trust
and the like.When, as in the instant
case, the parties to the alleged defective document have not formally impugned
the document themselves, no one else can.
In the Courts Resolution9 dated July 22, 2002, we referred the case
to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.Citing the Report and
Recommendation10 dated November 7, 2002
of its Investigating Commissioner, the IBP passed Resolution No. XV-2002-60411 on December 14, 2002
dismissing the Complaint for lack of merit.According to the Report and
Recommendation, the Bons failure to file the appropriate action to set
aside the Waiver and Quitclaim casts doubt on their claim that Ziga
misled or deceived them into signing the document.As regards Arcangel, the IBP concluded that
while he may have been remiss in his duties as a notary public, the same does
not constitute a ground for disbarment.
The complainant filed a Motion for Reconsideration12 dated February 24, 2003
which the IBP denied in Resolution No. XV-2003-14913 issued on March 22, 2003
since it no longer has jurisdiction to consider and resolve a matter already
endorsed to the Supreme Court.The
complainant then filed with this Court a Motion for Re-Examination of the
Report and Recommendation of the Investigating Commissioner of the Integrated
Bar of the Philippines14 dated
September 10, 2003 mainly rehashing his claim that the respondents induced the
Bons to sign the Waiver and Quitclaim by means of deceit and abuse of
We are hard put to ascribe to Ziga the fraud, intimidation,
stealth and deception with which the complainant labels his actuations.The fact that Amalia and Angelina Bon are
both high school graduates, while Teresa Bon is a college graduate15 makes it difficult to believe that they were deceived into thinking that the
contents of the Waiver and Quitclaim were other than what they
themselves could have easily ascertained from a reading of the document.As held by the Court in Bernardo v. Court of
The rule that one who signs a contract is presumed to know its
contents has been applied even to contracts of illiterate persons on the ground
that if such persons are unable to read, they are negligent if they fail to
have the contract read to them.If a
person cannot read the instrument, it is as much his duty to procure some
reliable persons to read and explain it to him, before he signs it, as it would
be to read it before he signed it if he were able to do so and his failure to
obtain a reading and explanation of it is such gross negligence as will estop
him from avoiding it on the ground that he was ignorant of its contents17 cralawred
Besides, the Waiver and Quitclaim is plainly worded. It
does not contain complicated terms that might be misconstrued by anyone who has
half the education attained by Amalia, Angelina and Teresa Bon.Moreover,the Bons admitted therein
that in 1930, their predecessors sold to the Ziga family the properties to
which they now lay claim.They also
declared in the document that it was only their brother, Alfredo, the
complainant in this case, who still claimed rights over the properties. The
relevant provisions of the Waiver and Quitclaim state:chanroblesvirtua1awlibrary
1. We are heirs and direct descendants of the late Santiago Bon of
2.We had been named as
formal parties in DARAB Case No. V-RC-010, Albay Branch 11 99 entitled
Virginia Desuyo, et al. v. Alfredo Bon, et al.;chanroblesvirtuallawlibrary
3.We admit that, we the
descendants and relatives of the late Santiago Bon do not have any right or
interest anymore over Lots No. 1911, 1917-A, 1917-B, 1970, 1988, all of Tabaco,
Cadastre, because the above lots had been already sold by our predecessor in
favor of the Ziga Family, predecessor of Ex-Senator Victor Ziga since 1930, and
that the above family had been continuously in possession thereof, thru their
tenants since 1930, or for more than 70 years already, to our exclusion;chanroblesvirtuallawlibrary
4.It is only our brother,
Alfredo Bon, who adamantly refuses to admit the above fact and still claim
rights over said properties despite the explanation of our ancestors that the
above mentioned lots had been long sold by our predecessor to the Zigas18 cralawred
Significantly, as pointed out by the Investigating Commissioner,
the Bons have not filed the appropriate action to set aside the Waiver and
Quitclaim.The complainant, however,
explains that they will pursue that the Waiver and Quit Claim be annulled by
the court19 in Civil Case No. T-2163 pending with the Regional Trial Court Branch 18, Tabaco
City.That they have yet to do so almost four (4)
years after the execution of the Waiver and Quitclaim diminishes, if not
totally discredits, their position that they were defrauded, intimidated and
deceived into signing the document.
At this time, all that the complainant offers to boost his claim
that Ziga employed deceit in procuring the Bons signatures are the latters
bare allegations to the effect that Ziga told them there was nothing wrong with
the document except that they were withdrawing the Special Power of
Attorney.These allegations are belied
by the Joint Affidavit20 of Maria
Bon-Borjal and Rafael Bon-Canafe, the Bons co-signatories, and the Joint
Affidavit21 of Rogelio Bon Borjal and Nida Barrameda, the subscribing witnesses to the Waiver
and Quitclaim, both of which assert that the contents of the document were
sufficiently explained to the Bons.
Given these circumstances, the presumptions that a person takes
ordinary care of his concerns;22 that private transactions have been fair and regular;23 and that acquiescence resulted from a belief that the thing acquiesced in was
conformable to the law or fact24 have not been sufficiently overcome.
However, we do find the act of Arcangel in notarizing the Waiver
and Quitclaim without requiring all the persons who executed the document
to personally appear before him and acknowledge that the same is their free act
and deed an unpardonable breach of his duty as a notary public.
Section 1 of Public Act No. 2103 provides:chanroblesvirtua1awlibrary
(a) The acknowledgement
shall be made before a notary public or an officer duly authorized by law of
the country to take acknowledgements of instruments or documents in the place
where the act is done.The notary public
or the officer taking the acknowledgement shall certify that the person
acknowledging the instrument or document is known to him and that he is the
same person who executed it, and acknowledged that the same is his free act and
deed.The certificate shall be made
under the official seal, if he is by law required to keep a seal, and if not,
his certificate shall so state.25 cralawred
The Acknowledgement contained in the Waiver and
Quitclaim executed in Zigas house in Manilaspecifically states: BEFORE ME, a Notary Public, for and in the above
mentioned locality personally appeared26 However, the Bons did not personally appear before Arcangel to acknowledge the
document.Arcangel himself admits as
much but posits that he was able to talk to the Bons co-signatories over the
phone, i.e., Maria Bon and Rafael Bon-Canafe, and that the two promised
to bring the document to Albay for notarization.Hence, Arcangel claims that there was
substantial compliance with the Notarial Law.He adds that as long as the signatures on the instrument are genuine,
the notary public can take the risk of notarizing the document although the
signatories are not present.
Arcangel seems to be laboring under a misguided understanding of
the basic principles of the Notarial Law. It is well to remind him that notarization is
not an empty, meaningless, routinary act. It is invested with substantive
public interest, such that only those who are qualified or authorized may act
as notaries public.Notarization
converts a private document into a public document thus making that document
admissible in evidence without further proof of its authenticity.A notarial document is by law entitled to
full faith and credit upon its face.Courts, administrative agencies and the public at large must be able to
rely upon the acknowledgement executed by a notary public and appended to a
private instrument. For this reason, notaries public must observe with utmost
care the basic requirements in the performance of their duties. Otherwise, the
confidence of the public in the integrity of this form of conveyance would be
Thus, a member of the bar who performs an act as a notary public
should not notarize a document unless the persons who signed the same are the
very same persons who executed and personally appeared before him to attest to
the contents and truth of what are stated therein.The acts of the affiants cannot be delegated
to anyone for what are stated therein are facts of which they have personal
knowledge.They should swear to the
document personally and not through any representative.Otherwise, their representatives name should
appear in the said documents as the one who executed the same.That is the only time the representative can
affix his signature and personally appear before the notary public for
notarization of the said document.28 Simply put, the party or parties who executed the instrument must be the ones
to personally appear before the Notary Public to acknowledge the document.29 cralawred
From his admission, we find that Arcangel failed to exercise due
diligence in upholding his duty as a notary public.He violated Rules 1.0130 and 10.0131 of the Code of Professional Responsibility as well.However, his transgression does not warrant
disbarment, which is the severest form of disciplinary sanction.
In Ocampo v. Yrreverre ,32 the Court, taking note of the remorseful attitude of the respondent who was
found guilty of breach of the notarial law for notarizing a document in the
absence of the signatories, revoked his notarial commission for a period of two
(2) years and suspended him from the practice of law for six (6) months.
WHEREFORE, the Complaint
filed against Atty. Victor S. Ziga is DISMISSED for lack of merit.
As regards Atty. Antonio A. Arcangel, his commission as Notary
Public, if still existing, is REVOKED. He is DISQUALIFIED from being
commissioned as such for a period of two (2) years.He is also SUSPENDED from the practice of law
for six (6) months effective immediately, with a WARNING that a repetition of a
similar violation will be dealt with even more severely.He is further DIRECTED to report the date of
his receipt of this Decision to the Court within five (5) days from such
The Clerk of Court of this Court is DIRECTED to immediately
circularize this Decision for the proper guidance of all concerned.
Let copies of this Decision be furnished the Office of the
Bar Confidant and the Integrated Bar of the Philippines
and recorded in the personal files of the respondents.
Quisumbing, (Acting Chairman),
Austria-Martinez, and Callejo, Sr., JJ., concur.
J., on official leave.
1 Rollo, pp. 1-11, with Annexes.
Id. at 6-11, Annexes B to D.
Id. at 19-28, with Annexes.
Id. at 25-27, Annexes B, B-1 and B-2.
Id. at 41-56, with Annexes.
Id. at 25-27, Annexes B, B-1 and B-2.
16 387 Phil. 736 (2000),
citing Tan Tua Sia v. Yu Baio Sontua, 56 Phil. 707
and Mata v. Court of Appeals, 207 SCRA 753.
Rule 131, Rules of Court.
23 Section 3(p),
Rule 131, Rules of Court.
24 Section 3(x),
Rule 131, Rules of Court.
29 Maligsa v. Cabanting, supra.
30 Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. Code of Professional Responsibility.
31 Rule 10.01. A lawyer shall not do any falsehood, nor consent to the doing of any
in court; nor shall he mislead, or allow the Court to be misled by any
artifice. Code of Professional Responsibility.
32 A.C. No. 5480, September 29, 2003.
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